Medical & Nursing Home Liability Pointers - 02/25/2022

 A Note from Stephanie L. McCance

Greetings from the rocky cliffs of Scotland!  In another sign that we are hopefully nearing the end of this pandemic, I was finally able to travel overseas to visit my family.  As I write this, I am enjoying a wonderful view of one of the many castles of Aberdeen while feasting on a proper Scottish breakfast (bacon, sausage, egg, blood pudding, mushrooms, tomatoes, baked beans, and a “tattie scone”).  Back home, in other encouraging COVID news, Erie County is no longer a “high-transmission” zone and has been downgraded to “substantial transmission."  While New York Governor Kathy Hochul has lifted the state's mask mandate on indoor public spaces, the statewide mask mandate remains in effect for health care facilities and nursing homes, along with schools, correctional facilities, and public transportation.  It is important to remember however that just because the state mandate has been lifted, local governments and private businesses are still allowed to require masks or proof of vaccination if they so desire.

We have breaking news to share on the controversial Comprehensive Insurance Disclosure Act (“CIDA") as the substantial modifications in the form of Chapter Amendments were finally passed and signed by the Governor this morning.  Our Insurance Coverage Team has also prepared this checklist detailing our obligations under the amended law.

• The disclosure requirement would only apply to lawsuits files after 12/31/21 effective date, and not retroactively to pending cases;
• Disclosures of policies or declarations pages would be required within 90 days after answer is filed, rather than 60 days. Declarations pages may suffice if agreed to by plaintiff, but plaintiff would have option to later request the policies;
• Disclosure would no longer require the application to be included;
• Disclosure of contact information for person adjusting the claim would still be required, but only name and email address;
• TPAs would no longer be required to disclose the name of the person to whom they are reporting;
• Disclosure would require provision of the total limits available under the policy after accounting for erosion/offsets;
• The amendments eliminate disclosure of lawsuits that may erode the policy and attorney contact information from such lawsuits;
• The amendments would eliminate attorney fee disclosure that may have eroded the policy limits;
• Instead of a broad “ongoing obligation” to ensure disclosures remain accurate and complete, defendants must make reasonable efforts at the time of the filing of the note of issue, entering into negotiations, or mediation to ensure that information is accurate and complete;
• PIP lawsuits would be expressly excluded.
   

There are no further developments at this time on the proposed “Grieving Families Act” (S.74-A/A.6770),  which would amend New York’s Wrongful Death Statue to permit the families of wrongful death victims to recover compensation for their emotional anguish, not just pecuniary loss, and extend the statute of limitation for wrongful death from two years to three and a half years from the date of fatality.  While the bill still sits in the Senate Judiciary Committee, there are formidable lobbying forces supporting its passage.
 
We have a lot of interesting cases to discuss this month.  There is a cautionary tale from the Fourth Department, which reversed and denied summary judgment to a defendant for failing to submit plaintiff’s medical records which supported their experts’ conclusions.  The First Department also reverses and denies summary judgment in a claim involving the post-childbirth removal of the placenta.  There is a bit of a mixed bag from the Second Department, which affirms summary judgment to a surgeon called into duty mid-surgery in one case, reverses and denies summary judgment on statute of limitations due to “continuity of care,” and upholds the denial of summary judgment based on conflicting expert opinions.  Lastly, the Third Department makes a discovery ruling that should benefit defendants in a broad spectrum of cases (including CVA, lead paint, etc.) by permitting review of child custody and Child Protective Service records in camera for discoverable information relative to defending against plaintiff’s claims of developmental delays and emotional distress allegedly caused by defendant's malpractice.
 
As a reminder, we are pleased to be offering in-house (webinar) training on all the new legislative and regulatory changes impacting the nursing home and long-term care communities, as well as the impact of Covid-19 immunity statutes on personal injury claims.  Please contact us directly to schedule a one-hour interactive training session.  Click on the links below for printable and downloadable resource guides on these topics as well:
 

• New York Nursing Home Regulatory Changes 2021 
• COVID-19 Immunity Litigation Update 

Your COVID-19 Resource Center: Legal Updates Regarding the Coronavirus
 

Our teams are hard at work keeping you updated on the latest New York State and Federal updates concerning the coronavirus. Our Resource Center compiles all of the information that could affect you and your business during this pandemic.

PROVIDER BURNOUT LINGERS – WITH ONGOING CONSEQUENCES
 
While most healthcare workers report feeling satisfaction with their employment, burnout due to pressures related to Covid-19 linger.  Healthcare workers’ moods reflect both pride and fatigue.  Although the majority of healthcare workers feel accomplishment with their contributions during the pandemic, approximately 1 in 4 healthcare workers report that they would like to leave the healthcare field entirely.
 
Burnout among healthcare workers continues to fuel staffing shortages at facilities across the country, driving up costs, as facilities scramble to hire travelling nurses and per diem staff, often at premium rates.  As discussed below, Governor Hochul has proposed signing bonuses and increased wages as part of  her first Proposed Executive Budget for the 2022-2023 fiscal year as a means to address ongoing staffing shortages in healthcare. 
 
GOV. HOCHUL RELEASES 2022-2023 NEW YORK STATE EXECUTIVE BUGDET
 
The Governor’s $216.3 Executive Budget Focuses on School Aid & Infrastructure, But Also Includes Large Earmarks Impacting Healthcare. 
 
Governor Hochul recently released her first Proposed Executive Budget for the 2022-2023 fiscal year.  Included in the proposed budget is $10 billion meant to rebuild New York’s healthcare workforce and implement modernizations to New York’s healthcare system.  Of this $10 billion, almost half is proposed to directly support wages and bonuses for healthcare workers in an effort to recruit and retain a robust healthcare workforce, including frontline healthcare worker bonuses of up to $3,000.  At least $1 billion is to be spent on capital improvement project investments in healthcare transformation and sustainability.  Other proposed healthcare investments include improving the State’s robust diagnostic testing capacity and increasing access to at-home Covid-19 tests. 
 
Notably absent from Governor Hochul’s Proposed Executive Budget is money for a Covid-19 Victims Compensation Fund.  This proposed $4 billion fund was meant to compensate the families of those who died of Covid-19 during the pandemic in nursing homes across the State.  State Legislators have leveraged this as a rallying cry against the initial immunity protections given to nursing home facilities during the Covid-19 pandemic.
 
Following public hearings on the Executive Budget, each branch of the NYS Legislature will then pass their own versions.  It is expected that a New York State budget will be finalized by April of 2022.
 
NEW YORK DELAYS ENFORCEMENT OF HEALTHCARE WORKER BOOSTER
 
New York State Health Commissioner Mary Bassett announced last week that authorities have decided to delay enforcement of the mandate for healthcare workers to obtain booster shots against Covid-19, citing ongoing staffing shortages.  “While we are making progress with 75% of staff received or are willing to receive their booster, the reality is that not enough healthcare workers will be boosted by next week’s requirement in order to avoid substantial staffing issues in our already overstressed healthcare system,” Bassett said in a recent statement.
 
The booster requirement was meant to take effect on February 21, 2022, but enforcement is being delayed three months, until May 21, 2022.

January 28, 2022         Ritts v. Gowanda Rehabilitation and Nursing Center
Appellate Division, Fourth Department
Summary judgment in favor of defendant overturned where defendant failed to submit any of decedent’s medical records to support expert opinion.
 
In an action to recover damages for medical malpractice and violations of Public Health Law 2801-d, plaintiff appealed from an order granting defendant’s motion for summary judgment. As defendant failed to submit any of decedent’s medical records, certified or otherwise, it was held by the Appellate Court that defendant’s experts’ opinions were not based on facts personally known to them and were therefore speculative, unsupported by evidentiary foundation and lacking in probative value. As such, defendant failed to meet their initial burden on the motion and the Appellate Court overturned the Trial Court’s decision.
 
February 1, 2022  Rong Lan Lin v. Margaret Wong, M.D. et al.
Appellate Division, First Department
Following manual removal of plaintiff’s placenta post-childbirth, the presence of necrotic placental tissue several weeks later - combined with expert testimony - constituted triable issues of fact as to the adequacy of defendants’ examination.
 
Following the uncomplicated delivery of plaintiff’s baby, defendant manually removed the placenta from plaintiff’s uterus. Two weeks later, a dilation and curettage procedure was performed which found a significant amount of necrotic placenta tissue still remaining. Plaintiff was subsequently diagnosed with stage IV Asherman’s syndrome and is no longer able to carry a pregnancy to term. Plaintiff filed suit for medical malpractice and defendants were awarded summary judgment, which plaintiff appealed.
 
The Appellate Court found that the presence of necrotic tissue retained in plaintiff’s uterus, combined with plaintiff’s expert opinion on the standard of care was sufficient to raise a triable issue of fact concerning the level of examination required, and whether defendant deviated from that accepted level of care by failing to adequately examine the placenta at the time and immediately following its manual extraction to see if it was completely removed, and therefore proximately causing her injuries. As such, the Trial Court’s judgment was vacated and plaintiff’s claim for medical malpractice was reinstated.
 
February 2, 2022 Bum Yong Kim et al. v. North Shore Long Island Jewish Health System et al.
Appellate Division, Second Department
Summary judgment awarded to defendant who became involved in plaintiff’s treatment mid-surgery under the direction of other surgeons and without exercising independent judgment over plaintiff’s surgical management.
 
Plaintiff presented to the emergency room with complaints of gastric burning. He was diagnosed with inflammation of the gallbladder and recommended surgery to remove the organ. During the surgery, the gallbladder was found adhered to the stomach and, upon separating the two organs, a large hole was observed in the stomach. Resection of the distal stomach was deemed necessary and defendant Powers was requested mid-surgery to assist with that procedure. Although plaintiff improved clinically, he experienced complications including bilious and feculent drainage and a fistula.
 
On a motion for summary judgment, experts for defendant Powers opined that he only became involved in plaintiff’s treatment mid-surgery, that he worked under the direction of other surgeons, that he did not exercise independent judgment in the surgical management of plaintiff, that his actions were in accordance with the accepted standard of care, and that he did not proximately cause plaintiff’s injuries. In opposition, plaintiff’s expert opinion was conclusory, speculative, and failed to address the specific assertions of defendant Powers’ expert. As such, summary judgment was appropriately granted in favor of defendant Powers and the Trial Court’s order was affirmed.
 
February 2, 2022    Inna Chvetsova v. Family Smile Dental et al.
Appellate Division, Second Department
Plaintiff’s expert raised a triable issue of fact as to her continuity of care, thus her causes of action were not time barred by the statute of limitations.
 
Plaintiff commenced an action for medical malpractice alleging that defendants had failed to diagnose her with a bone condition prior to recommending and performing surgery contraindicated by that condition, resulting in multiple corrective surgeries and related treatment, including reconstructive surgery. Defendants moved to dismiss the amended complaint on the grounds that the causes of action were time barred.
 
Plaintiff’s expert raised a question of fact as to whether plaintiff’s subsequent visits to defendants constituted a continuation of the course of treatment for the same condition, as she initially sought treatment for a permanent prosthetic replacement and the further surgeries were related to the initial malpractice which caused the prosthesis to become loose and need replacement. As such, the Appellate Court overturned the Trial Court’s order granting dismissal as to the medical malpractice and lack of informed consent causes of action.
 
February 9, 2022     Sharon Williams v. Jacqueline Bush et al.
Appellate Division, Second Department
Conflicting expert testimony regarding whether plaintiff should have been placed on blood pressure medication and admitted to hospital to avoid premature delivery raised triable issues of fact sufficient to defeat defendants’ motion for summary judgment.
 
Plaintiff was referred to defendant, an obstetrician specializing in maternal-fetal medicine as she was considered high risk due to her advanced maternal age and history of chronic hypertension. Plaintiff raised this action for medical malpractice, alleging that defendant failed to control plaintiff’s blood pressure during her pregnancy by maintaining her on blood pressure medication, and failed to admit plaintiff to hospital despite warning signed of hypertension and preeclampsia, resulting in premature delivery and injury to the fetus.
 
Plaintiff’s expert raised triable issues of fact that blood pressure medication was “clearly indicated,” she met the standard for inpatient hospital admission and treatment of hypertension, and had these precautions been taken, premature delivery would not have been necessary. As such, the Trial Court properly denied defendants’ motion for summary judgment and the Appellate Court affirmed.
 
February 17, 2022   C.T., in Infant, by Her Mother and Guardian J.T., v. Tammy Brant et al.
Appellate Division, Third Department
Trial Court abused its discretion in failing to review child custody and Child Protective Services records in camera for discoverable information relative to plaintiffs’ claims of physical, intellectual, and emotional impacts arising from alleged medical malpractice.
 
Plaintiff commenced this action on behalf of her infant daughter to recover for various physical, intellectual, and emotional impacts allegedly arising from defendants’ negligence and medical malpractice. In the course of discovery, defendants moved to compel the production of court orders addressing legal custody of the infant, as well as documents relating to the involvement of the infant with Child Protective Services. Plaintiff cross-moved for a protective order as to those same records. The Trial Court denied both motions as to the custody records subject to an in camera review and denied defendants’ motion and granted plaintiffs’ cross-motion as to the CPS records.
 
As to the custody records, the Appellate Court found that, although the Family Court Act section 166 provides that such records shall not be open to indiscriminate public inspection, the records did possibly contain information on family dynamics that may have impacted the infant’s development and would therefore be relevant to the claims at issue. As such, the Trial Court abused its discretion in not reviewing the custody records for that information and directed it to do so.
 
As to the CPS records, defendants provided medical records reflecting that the infant had been sexually abused by a relative and articulated how documents assessing the impact of that abuse would be material in defending against plaintiff’s allegations regarding developmental delays and emotional distress. Thus, the Appellate Court found that the Trial Court should review those CPS records in camera to determine if they contain any discoverable information relevant to plaintiff’s claims.

As a public service, we are pleased to present this newsletter providing the latest news, developments, and analysis of recent court decisions impacting the medical and long-term care communities.  In some jurisdictions, newsletters such as this may be considered: Attorney Advertising.
 
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Your Medical Malpractice & Nursing Home Defense Team
is here to answer your questions:
V. Christopher Potenza, Esq. ([email protected])
Patrick B. Curran, Esq. ([email protected])

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